- (1.) THIS is a bunch of 542 writ applications presented under Articles 226 and 227 of the Constitution, challenging the vires of the Rajasthan Tenancy (Amendment) Act, 1960 (Act No. 4 of 1960) (which shall hereafter be referred to as the Act No. 4 of 1960) amending the Rajasthan Tenancy Act, 1955 (Act No. 3 of 1955) (which shall hereafter be referred to as the Tenancy Act), and, the validity of the Rules and Notifications issued under the Act, and praying for writs in the nature of mandamus, prohibition or certiorari, restraining the opposite party from giving effect to or acting in any manner by virtue of or under the said Act or Notifications.
(2.) TO state the facts, the State of Rajasthan passed the Rajasthan Tenancy (Amendment) Act No. 4 of 1960 for the purpose of imposing ceilings on agricultural holdings in Rajasthan. By means of this Act, the Legislature inserted new Chapters III-B and III-C. Chapter III-B which is relevant for our purposes, introduces secs. 30-B to 30-J in the original Tenancy Act. Sub-sec.(2) of sec. 1 of the Act provided that the Act shall come into force on such date as the State Government may, by notification in the official Gazette, appoint. This Act received the assent of the President on 12-3-1960. After the enactment of Act No. 4 of 1960, the Rajasthan Government by notification No. F. 6(120) Rev./B/60 dated 9th April, 1963, published a draft of the Rajasthan Tenancy (Fixation of Ceiling on Land (Government) Rules, 1963, as required by sec. 259 of the Tenancy Act, for the information of all persons likely to be affected thereby, and further giving notice that the said draft rules shall be taken into consideration on or after the 15th day of July, 1963, along with any objections or suggestions which may be received by the Government from any person with respect to the said draft rules before that day. It may be pointed out that during the course of arguments no reference was made whether any of the petitioners made any objections or suggestions in response to the notice given by the Government. We then come to 26th of November, 1963. On this date, the three important notifications were promulgated. Firstly, by notification No. 6(12) Rev./B/60 passed in the exercise of powers conferred by sub-sec. (2) of sec. 1 of the Act No. 4 of 1960, the State Government appointed 15th day of December, 1963 as the day on which the said Act shall come into force. By another notification No. F. 6(120) Rev. B./60(iii) of the even date passed in the exercise of powers conferred by sub-sec. (1) of sec. 30-E of the Tenancy Act, the State Government notified 15th day of December, 1963 as the day for the purpose of said section in respect of all holdings of 150 ordinary acres and above situated in all areas other than the areas covered by the Rajasthan Canal Project. Lastly, by Notification No. 6(120) Rev. B/60(ii) dated 26-11-1963 in the exercise of powers conferred by sec. 257 of the Tenancy Act, the State Government made and published "The Rajasthan Tenancy (Fixation of Ceiling on Land (Government) Rules, 1963." Sec. 30-E as inserted by the Act No. 4 of 1960 requires a person in possession of land in excess of the ceiling area applicable to him or a person who subsequently comes into possession of excess area by acquisition to make a report of such possession or acquisition and to surrender such excess land to the State Government within six months of such date or within three months of such acquisition. R. 9 of the Ceiling Rules requires persons to file declarations in the prescribed forms. The petitioners, who are holders of agricultural holdings having become liable to take action under sec. 30-E of the Act No. 4 of 1960 and R. 9 of the Ceiling Rules, filed the present writ applications challenging the Act, the Notifications and the Rules. The main attack of the petitioners against the Act was based on the Act being violatives of the fundamental rights guaranteed to the petitioners by Arts.14, 19 and 31 of the Constitution. It may be incidentally mentioned that at the time when these writ petitions were filed, the decision of the Supreme Court in Karimbil Kunhikoman vs. State of Kerala (1) striking down the Kerala Agrarian Relations Act of 1961 held the field. There was another pronouncement of the Supreme Court in A. P. Krishnaswami Naidu vs. The State of Madras (2) whereby Madras Land Reforms (Fixation of Ceiling on Land) Act (58 of 1961) was struck down. The petitioners claimed to have very powerful weapons of attack in these two decisions of the Supreme Court. At this stage, we ought to mention some subsequent developments which took place during the pendency of the writ applications. The Central Government and most of the State Governments appeared very keen to implement what is called by them a "programme of agrarian reforms". After abolition of the Zamindari, Biswedari and other measures of agrarian reforms, the Government took in hand the second step by imposing the ceiling on agricultural holdings. Some States passed enactments for that purpose. These enactments were challenged before the judiciary and some of the Acts were struck down. The Central Government thereupon moved the Parliament arid got enacted the 17th Constitution Amendment Act of 1964. By the Amending Act some 24 Acts of the various State Legislatures including the Rajasthan Tenancy Act as also some of the Acts which were struck down were added to the list in the Ninth Schedule so as to place them beyond challenge on the ground of violation of fundamental rights. The validity of the Seventeenth Constitution Amendment Act, 1964 was challenged in the Supreme Court. Some persons feeling aggrieved by one or other of the Acts added to the Ninth Schedule by the impugned Act challenged the validity of the Seventeenth Amendment Act and the validity of the various Acts added in the list. The Supreme Court by its decision in Sajjan Singh vs. The State of Rajasthan, (Writ Petitions Nos. 31, 50, 52, 54, 81 and 82 of 1964, decided on 30th October, 1964) upheld the validity of the Constitution (17th Amendment) Act, 1964 as also of the various Acts added to the list in the Ninth Schedule. In this manner, the validity of the Rajasthan Tenancy Act as also of the Amendment Act No. 4 of 1960 was affirmed by the Supreme Court. Although in view of these developments the so called powerful weapons in the armoury of the petitioners became more or less ineffective still the learned counsel for the petitioners did not abandon [their attack against the Act and Mr. Chand Mal, Mr. Agarwal, Mr. Sharma and Mr. Joshi, appearing on behalf of the petitioners, addressed lengthy arguments while attacking the vires of the Act, the validity of the notifications and the validity of the rules. We propose to refer to these arguments while dealing with each head of attack. We first take up the attack against the Act itself. The counsel for the petitioners were faced atonce with Constitution (17th Amendment) Act and the decision of the Supreme Court and they felt that it was not possible for them to challenge the vires of the Act on the ground of the Act being violative of the fundamental rights and they, therefore, did not press most of the grounds which were taken in the writ applications. However, the learned counsel for the petitioners made a three-fold attack on the Act and contended that the Supreme Court having not expressed any opinion with regard to these grounds of attack, it is open to this Court still to consider the validity of the impugned Act on an examination of the grounds submitted by them. In the first instance, it was submitted that the Act suffers from the infirmity of want of legislative competence. The State Legislature, it is contended, had no legislative competence to enact the impugned Act and it is a colourable piece of legislation. The argument in this behalf were two pronged. In the first instance, it was contended that although the legislature has purported to pass this legislation under Entry No. 18 of the State List, in fact, it is a legislation which should appropriately be considered as relating to acquisition and requisition of land and that it should appropriately fall under Entry No. 42 of the Concurrent List. This submission as regards the want of legislative competence on the part of the State Legislature has absolutely no force. In the first place, the legislation is mainly concerned with the land and the various subjects mentioned in Entry 18. Even if the legislation be treated as falling under Entry No. 42 of the Concurrent List, still the competence of the State Legislature to enact the law cannot be doubted, because the subject, if treated as falling within the Concurrent List, the State Legislature has competence to enact such a law. It has not been suggested that the law is in conflict with any Central law on the subject and even if there be such a conflict, the legislation stands protected because the legislation has been assented to by the President. This branch of argument relating to want of legislative competence is absolutely without force and deserves summary rejection. The next branch of argument is that although the Act purports to rationalise the distribution of agricultural lands, in fact that Act seeks to deprive the holders of agricultural lands of their holdings by payment of inadequate compensation and by making profits by selling the holdings to other persons at comparatively higher prices. Now, the principle as to what is a colourable legislation stands well settled. As observed by the Supreme Court in K.C. Gajapati Narayan Deo vs. State of Orissa (1), "the question whether a law was a colourable legislation and as such void did not depend on the motive or bona fides of the legislature in passing the law but upon the competency of the legislature to pass that particular law, and what the courts have to determine in such cases is whether though the legislature has purported to act within the limits of its powers, it has in substance and reality transgressed those powers, the transgression being veiled by what appears,on proper examination to be a mere pretence or disguise. The whole doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly." A question similar to the one which has been raised before us was raised before the Supreme Court in Karimbil Kunhikoman vs. State of Kerala (1). In the case before the Supreme Court, the person to whom the land was to be assigned after acquisition, was required to pay 55% of the market value of the land while the person from the excess land was taken was not to be paid always 50% of the market value and in some cases was to receive only 25% of the market value. On these facts, it was contended before the Supreme Court that the State wanted to make profits and that the Act was a colourable legislation. The contention was over-ruled. It was observed that the adequacy of the compensation could not be questioned in view of Art.31 (2). In the present case the challenge to the vires of the Act on the ground of inadequacy of the compensation or on the ground of the Act being violative of the fundamental rights, cannot at all be entertained. In these circumstances, on this ground that the State is paying less to the land holders in the form of compensation and will be receiving higher amounts of money from the persons to whom the lands will be allotted, cannot be considered sufficient to hold that the State had no legislative competence to enact the law and that the law is a colourable one. The contention of the petitioners based on want of legislative competence of the State Legislature to enact the law on this ground also fails and stands rejected. Next, it was contended that the Act suffers from the vice of excessive delegation. Our attention in this connection was invited to sub-sec. (4) of sec. 30-G. Sec. 30-G sub-sec. (4) reads as follows - "The amount of compensation so determined shall be apportioned among the person surrendering his land under sub-sec. (2) of sec. 30-E or ejected therefrom under sub-sec. (4) of that sec tion, and his tenants, if any, in the manner laid down in rules made by the State Government in this behalf." The argument is that the Act does not lay down any guiding principle for the rulemaking authority as to the manner in which the compensation should be apportioned between the land holder and his tenant. A perusal of the Act No. 4 of 1960 shows that the compensation payable to the land holder is to be determined in accordance with the principle laid down in sec. 23, 24, 25 and 26 of the Tenancy Act. The principles as to how compensation should be determined are available in the Tenancy Act itself and these provisions, in our opinion, do indicate the legislative policy and provide sufficient guidance to the rule-making authority to frame necessary rules in this behalf. In enacting sub-sec (4), we do not think that the legislature has in any manner abdicated its legislative function. There are sufficient guiding principles under which the State Government can frame the necessary rules. The challenge to the attack on the ground of excessive delegation has no merits and must therefore fail. Thirdly, it was contended that the Act, although it purports to create ceilings on land, in fact creates a ceiling of agricultural income. We have not been impressed by this contention. The entire scheme of the Act clearly shows that the main purport of the Act is to impose ceiling on agricultural holdings. There is nothing in the Act to indicate that the legislature intended to impose ceilings of agricultural incomes. The attack on this ground also fails and merits no serious consideration. Thus, the various grounds of the attack on the Act fail and we have no hesitation in affirming the validity of the Act. The next attack of the petitioners is on the validity of the notification No. F. 6 (120) Rev. B/60 (iii) dated 26th November, 1963 appointing 15th day of December, 1963, as the date for the purposes of sec. 30-E in respect of all holdings of 150 ordinary acres and above situated in all areas other than areas covered by the Rajasthan Canal Project. The attack against the notification may be discussed under three different heads. Firstly, it was contended that the various provisions which were sought to be inserted in the original Tenancy Act by the Amending Act ( i.e. Act No. 4 of 1960 ) became incorporated in the Tenancy Act only on 15th day of December, 1963, the date on which the Act came into force. Before that date they had not been incorporated in the Act. Consequently, the State Government had no jurisdiction to exercise the powers conferred on it by sec. 30-E and to fix a date in terms of sec. 30 E. Being faced with the provisions of sec. 24 of the Rajasthan General Clauses Act, it was contended that sec. 24 cannot be made applicable to the present case. It was contended that the State Government while fixing the date was acting substantively as a functionary under the Act and was not discharging any delegated functions. Sec. 24 of the Rajasthan General Clauses Act corresponds to sec. 22 of the Central Genera] Clauses Act. Sec. 22 of the Central General Clauses Act came up for interpretation before the Supreme Court in Venkateswaraloo vs. Supdt. Central Jail, Hyderabad State (2). After referring to corresponding sec. 37 of the English Interpretation Act, their Lordships of the Supreme Court laid down the law in the following terms: "It is an enabling provision, its intent and purpose being to facilitate the making of rules, bye-laws and orders before the date of the commencement of an enactment in anticipation of its coming into force. In other words, it validates rules, bye-laws and orders made before the enactment comes into force provided they are made after the passing of the Act and as preparatory to the Act coming into force. It does not authorize or empower the State Government to pass substantive orders against any person in exercise of the authority conferred by any particular section of the new Act. The words of the section "with respect to" prescribe the limit and the scope of the power given by the section. Orders can only be issued with respect to the time when or the manner in which anything is to be done under the Act." The last two sentences are very relevant for the purposes of determining the present controversy. Their Lordships clearly say that orders can be issued with respect to the time when or the manner in which anything is to be done under the Act. Now, in the present case the order which has been passed by the State Government relates to the time when a particular act is to be done under the Act. The present is not the case where the State Government acts as a functionary to exercise some powers conferred upon it by the Act. As we understand the principle laid down by the Supreme Court, we have no hesitation in coming to the conclusion that the notification issued by the State Government can be properly passed in terms of sec. 24 of the Rajasthan General Clauses Act.
(3.) THE learned Counsel also relied upon Messrs. Adarsh Bhandar vs. State Tax Officer, Aligarh(3) and Rajender Kumar Chandarmal vs. Government of State of M. P.(4). It is unnecessary to notice these cases in detail in view of the discussions of the law in the Supreme Court case. It will be sufficient to observe that the decisions have been arrived at on a consideration of the facts and the circumstances of these cases and they cannot render any assistance to the petitioners in the facts and the circumstances of the present case. Alternatively, it was also urged that the Act came into force as soon as it was published and that sec. 24 of the Rajasthan General Clauses Act is confined to the period between the promulgation of the Act and the commencement of the Act. Reliance was placed in this connection upon some observations in A. Thangal Kunju Musaliar vs. M. Venkatachalam Potti (5) and Rajendra Kumar Chandanmal vs. Government of State of M.P. (6). These observations have been made in different facts and different circumstances and in our opinion, have no bearing on the controversy calling for determination in the present case. The position before us is very clear. The Act had been passed by the State Legislature but it was to come into operation at a later date. Between these two dates the State exercising powers under sec. 30-E of the Act No. 4 of 1960 passed an order fixing the date as required by that section. We do not see how sec. 24 of the Rajasthan General Clauses Act cannot be invoked in these circumstances. The contention in this behalf thus has no force. Next, it was contended that under proviso to sub sec. (1) of sec. 30-E, the State Government can notify different dates for the purposes of sub-sec. (1) for different areas of the State. It was contended that different areas of the State in the context must mean different geographical regions. Consequently it is argued that the State went beyond the provisions of the Act in categorising areas on the basis of the sizes of the holdings and fixing the date with respect to holdings measuring 150 ordinary acres and above. In support of their contention, reference was made to similar provisions in the Rajasthan Land Reforms and Resumption of Jagirs Act and the Rajasthan Zamindari and Biswedari Abolition Act where it was provided that different dates can be prescribed for different classes or categories of Jagirs or Biswedari or Jamindari. We have given our very careful consideration to the argument advanced in this behalf It appears that the legislature had in view the administrative convenience of the State Govt. while providing in the proviso that different dates may be notified for different areas in the State. The legislature might have thought that it was hardly possible for the State to take action in respect of the entire land in the State at one stage and thought it proper to enable the State Government to carry out the reform in various stages. This could only be the main consideration in enacting this provision. Now, in taking steps in stages the State Government could differentiate areas both on consideration of geographical regions as also on a consideration of the sizes of the holdings. In considering the State's convenience the legislature could have no intention to insist that the different phases should be related to different geographical regions. It is in this back ground that the proviso has to be properly understood and given meaning to. It may also be incidentally pointed out that in giving meaning to a particular provision of law the entire context and the setting in which the provision happens to be enacted must be considered and that unnecessary emphasis should not be given on a mere literal interpretation. As we look at the matter, the expression "different area of the State" is capable of being interpreted in two different ways. Firstly, "different area of the State" can be interpreted as meaning different areas within different geographical divisions. Secondly, the areas may be differentiated on the basis of sizes of the agricultural holdings and in that sense agricultural holdings of different sizes may be treated different areas of the State. We may also in this connection notice the position placed before me by the Advocate General in this behalf. He submitted that sec. 30-E of the Act No. 4 of 1960 imposes a substantial burden upon the land holders in the matter of submitting reports and surrendering lands in their possession in excess of the ceiling limits and also in making certain declarations. Consequently, it was considered necessary step in the proper working of the Act that some measurable standard which may proximate to the ceiling area, be adopted. The State Government, therefore, thought it proper to fix 150 ordinary acres as it was reasonably expected that the holders of that size or above are very likely to have lands beyond ceiling limits. This also, in our opinion, is a very relevant consideration in interpreting and giving the matter our very careful and earnest consideration, we feel inclined to take the view that under the terms of the proviso it was open to the State to categories lands on the basis of areas and sizes and to adopt different dates with reference to such categories. In our opinion, the notification does not violate the letter or the spirit of the provisions of sec. 30-E and we do not see adequate reason to invalidate the notification on this ground. Lastly, it was argued that the State Government by fixing 15th December for holdings of 15 ordinary acres and above has acted inconsistently with sub-sec.(1) of the Act No. 4 of 1960. We do not find any inconsistency. Sub-sec. (1) enacts the general Rule and empowers the State Government to fix a day in terms of sec. 30-E. The proviso enables the State to fix different dates for different areas or categories of holdings. When a particular date is notified for certain categories of holdings sub-sec. (1) cannot apply to holdings other than those referred to in the notification. The two provisions have to be interpreted according to the rule of harmonious construction. There is no force in this ground either. The notification attacked by the petitioners suffers from no invalidity and we reject the contention of the petitioners in this behalf. ;